Citation Nr: 1445871 Decision Date: 10/16/14 Archive Date: 10/30/14 DOCKET NO. 09-01 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for hepatitis B. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from August 1968 to February 1970, including service in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), at the local regional office. A transcript of the hearing is included in the record. In March 2011, the Board reopened service connection for the two claims on appeal, which were previously denied by final VA rating decisions. The Board then remanded the two claims for additional development and medical inquiry. The record in this matter consists of paper and electronic claims files, and has been reviewed. No new evidence has been included in the record since the April 2012 Supplemental Statement of the Case (SSOC). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran has residuals of malaria which had its onset during active service. 2. The preponderance of the evidence of record indicates that the Veteran's hepatitis B was not incurred during service. CONCLUSIONS OF LAW 1. Service connection for residuals of malaria is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for hepatitis B have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A. 38 C.F.R. § 3.159(b). The duty to notify the Veteran was satisfied on appeal by way of several letters to the Veteran between September 2005 and July 2011. These letters informed him of his duty and the VA's duty for obtaining evidence. In addition, the correspondence met the notification requirements set out for service connection and for effective dates and disability ratings, in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, following full notification, the claims addressed in this decision were readjudicated in the SSOC of record. Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained. VA obtained the Veteran's STRs. VA included post-service VA treatment records and attempted to obtain treatment records pertaining to treatment the Veteran claims to have undergone in the early 1970s. Despite the RO's efforts, memoranda of record indicate that such records are unavailable. VA included in the claims file relevant post-service private medical evidence. VA also offered to assist the Veteran in obtaining additional private treatment records. VA afforded the Veteran VA compensation examinations during the appeal period. Moreover, VA afforded the Veteran the opportunity to give testimony before the Board in his own hearing, which he did in November 2010. With respect to the Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the appellate issues decided herein at the beginning of the hearing and remanded the claims for examinations. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In sum, all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims. No further assistance to develop evidence is required. The Claims to Service Connection The Veteran claims that he incurred malaria and hepatitis during service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for malaria may be conceded on a presumptive basis when manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board will address the Veteran's claims separately below. Malaria A service connection finding is warranted for residuals of malaria for the following reasons. First, in the only medical examination report of record addressing his claim, the Veteran is diagnosed with residuals of malaria. In the August 2011 VA compensation examination report of record, provided pursuant to the Board's March 2011 remand, the examiner (a physician) diagnosed the Veteran with residuals of malaria. The examiner noted the Veteran's complaints since service of intermittent weakness, fatigue, sweats, fevers, diarrhea, and nausea. And the examiner stated that the Veteran's complaints are "commonly associated symptoms." Second, the evidence is in relative equipoise regarding whether the Veteran had malaria during service. Certain evidence indicates that the Veteran did not have malaria during service. The Veteran's STRs are negative for malaria. The earliest evidence of record of a medical diagnosis of malaria, or residuals of malaria, is found in the August 2011 VA report, over 41 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Certain other evidence indicates, however, that the Veteran did have malaria during service. An April 1969 STR indicates treatment for diarrhea and stomach cramps. Though this STR does not contain a diagnosis of malaria, it is nevertheless some evidence tending to favor his claim that he was treated for malarial symptoms during service. It is also significant that the Veteran has consistently claimed that he was treated for the disorder during service. While the Veteran is not competent to diagnose himself with a medical illness, the Board finds his report of being diagnosed and treated for malaria during service to be credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That he claimed service connection for malaria in February 1970 - the month of his discharge from service - tends to support his claim to in-service treatment, moreover. With regard to the issue of service incurrence, the Board has also considered the favorable provisions of 38 U.S.C.A. § 1154(b) in this matter. For veterans who engaged in combat with the enemy, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The Veteran served in combat in Vietnam, in jungle conditions that caused many service members to incur malaria. Even though there is no STR documenting his diagnosis and treatment, his claims are consistent with the circumstances, conditions, or hardships of his service in Vietnam. Third, the medical evidence links the in-service malaria treatment to the current residuals of malaria. Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Indeed, the only medical opinion of record pertaining to this issue favors the Veteran's claim to medical nexus. In the August 2011 VA report, the examiner stated that residuals of malaria as likely as not relate to service. In support, the examiner indicated that he found the Veteran's report of in-service treatment credible. The examiner stated that the Veteran "gives a good story for malaria, has commonly associated symptoms, other members of his unit were ill with the same symptoms, he has had recurrent episodes over the years[.]" This examiner also indicated a review of the claims file, an interview of the Veteran, and a personal examination of the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Based on the evidentiary background in this matter, service connection is warranted for residuals of malaria. Parenthetically, the Board has reviewed discussion in the record which indicates that the Veteran did not appear for scheduled laboratory testing regarding the residuals of malaria. Nevertheless, the record sufficiently documents that he has residuals of malaria. This was clearly indicated by the August 2011 VA examiner who based his assessment of the Veteran on "clinical grounds." The extent to which his residuals should be rated is not at issue before the Board in this decision. 38 C.F.R. § 4.88(b), Diagnostic Code 6304. Hepatitis B By contrast, a service connection finding for hepatitis B is not warranted. The record demonstrates that the Veteran currently has hepatitis B. This is noted in VA treatment records, a February 2012 VA compensation examination report, and in private medical records dated in October 2007. However, the preponderance of the evidence of record indicates that the Veteran did not have hepatitis during service, and that his current hepatitis is unrelated to service. The Veteran's STRs are negative for hepatitis. The January 1970 separation report of medical examination is negative for hepatitis. The earliest evidence of record of a complaint of hepatitis is found in a December 1982 claim from the Veteran (in which he asserted that he incurred hepatitis from herbicides exposure in Vietnam). Further, the earliest medical evidence of a diagnosis of hepatitis is found in the private October 2007 medical records. See Maxson, supra. In contrast to his claim for malaria - in which he states that he remembers being diagnosed and treated for malaria during service - the Veteran does not indicate that he was diagnosed and treated for hepatitis during service. In fact, during his Board hearing in November 2010, the Veteran stated that he was not diagnosed or treated for hepatitis during service. He indicated that he was diagnosed with hepatitis soon after service. He theorizes that he contracted hepatitis while undergoing medical treatment in service for malaria. As indicated, the Veteran as a layperson may be deemed competent to provide certain evidence such as matters on which he can observe. He is not competent, however, to diagnose himself with a chronic liver disorder such as hepatitis, or to provide medical evidence regarding the etiology of such a disorder. He does not have the training and expertise to offer evidence regarding such matters. On the essentially medical questions before the Board, the Veteran's lay assertions are of limited evidentiary value. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the record lacks evidence of an onset of hepatitis during service. In addressing whether the Veteran had hepatitis during service, the Board has considered the provisions of 38 U.S.C.A. § 11154(b). However, the presumption thereunder should not apply here because he asserts that he contracted the disorder not during combat but as the result of herbicide exposure, and as the result of medical treatment while in Vietnam. With regard to the Veteran's contention in December 1982 that herbicides exposure in Vietnam caused hepatitis, the Board has reviewed the provisions of 38 C.F.R. § 3.309(e). Under this regulation, VA provides that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (beginning on January 9, 1962 and ending on May 7, 1975) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). The Veteran clearly served in Vietnam during the noted time period. However, hepatitis is not a disease listed under this provision. Therefore, 38 C.F.R. § 3.309(e) cannot form the basis of a service connection finding here. Lastly, with regard to the issue of direct service connection, the only medical professional to offer an opinion based on the evidence of record countered the Veteran's claim. In the February 2012 VA report, the examiner stated that the Veteran's hepatitis B likely did not relate to service. In support, the examiner noted that the Veteran's STRs did not indicate hepatitis, and that medical evidence in the early 1970s did not indicate hepatitis. Further, the examiner indicated a review of the claims file, an interview of the Veteran, and an examination of the Veteran. See Bloom, supra. The Board notes two statement of records from medical professionals which pertain to this particular claim. In the private October 2007 private record noting the diagnosis of hepatitis B, it is stated, "infected during Vietnam." Further, in a September 2007 VA psychiatric evaluation, the physician stated that the Veteran was treated in Vietnam by a medic in the field for infections including malaria and hepatitis C. The physician indicated that the Veteran was hospitalized for malaria and hepatitis C in Vietnam in 1969. The Board finds these statements to be of limited probative value on the issue of medical nexus before the Board. Simply put, each physician appears to have based their statement on a medical history provided by the Veteran. There is no indication in either statement that the respective physician examined the Veteran for the etiology of his hepatitis, or reviewed the claims file, to include the evidence dated from the early 1970s which is entirely negative for hepatitis. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). Indeed, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). While the Board cannot reject the two statements from medical professionals solely because each is based on a history related by the Veteran, the critical question is whether the history is credible in light of all the evidence. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Given the evidentiary background in this matter, the Veteran's statements regarding the history of his hepatitis diagnosis are not probative. As the private physicians rely on the Veteran's history, their statements are unpersuasive. Based on the foregoing evidence, the preponderance of the evidence of record is against a finding of service connection for hepatitis. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of malaria is granted. Service connection for hepatitis B is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs